Oliver Wendell Holmes, Jr., is considered by many to be the most
inď¬‚uential American jurist. The voluminous literature devoted to his
writings and legal thought, however, is diverse and inconsistent. In this
study, Frederic R. Kellogg follows Holmesâ™s intellectual path from his
early writings through his judicial career. He offers a fresh perspective
that addresses the views of Holmesâ™s leading critics and explains his
relevance to the contemporary controversy over judicial activism and
restraint. Holmes is shown to be an original legal theorist who recon-
ceived common law as a theory of social inquiry and who applied
his insights to constitutional law. From his empirical and naturalist
perspective on law, with its roots in American pragmatism, emerged
Holmesâ™s distinctive judicial and constitutional restraint. Kellogg dis-
tinguishes Holmes from analytical legal positivism and contrasts him
with a range of thinkers, including John Austin, Thomas Hobbes,
H. L. A. Hart, Ronald Dworkin, Antonin Scalia, and other leading
legal theorists.

Frederic R. Kellogg has been Visiting Scholar in the Department of
Philosophy at the George Washington University, Senior Fulbright
Fellow at the University of Warsaw, and Visiting Professor at Moscow
State University. He is the author of The Formative Essays of Justice
Holmes: The Making of an American Legal Philosophy, as well as numerous
articles on legal philosophy and jurisprudence.
Oliver Wendell Holmes, Jr., Legal Theory,
and Judicial Restraint

Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York
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In memory of Paul A. Freund and Elliot L. Richardson
Contents

Preface page ix

1 A Time for Law 1
2 Playing King: Connections and Misconceptions 10
3 Holmesâ™s Conception of Law 26
Common Law Theory Revisited
4 46
Holmes and Legal Classiď¬cation
5 61
The General Theory of Liability
6 80
Morals and Skepticism in Law
7 100
Judges, Principles, and Policy
8 118
9 Common Law Constitutionalism 137
10 Holmesâ™s Theory in Retrospect 157
11 Conclusion 171

Appendix 177
Bibliography 181
Index 195

vii
Preface

I have a learned friend, whose name would be well recognized if I were to
disclose it, who though active in supporting conservative judicial nomi-
nees conď¬des deep misgivings about the philosophical basis of contempo-
rary judicial conservatism. For my part I have long had misgivings about
contemporary legal philosophy, which I ď¬nd to be illuminating, if not
parallel, in regard to my friendâ™s central concern, the basis for judicial
restraint. In part, this book is an attempt to place this issue in a broader
historical and theoretical context, I hope neither innately liberal nor
conservative, as those terms are popularly understood.
More important, this is a book about Oliver Wendell Holmes, Jr., and
his contribution to legal theory. These subjects converge because, even
while Holmes was engaged in reď¬ning a concept of law grounded in the
philosophy of the common law, the intellectual landscape in England and
America was changing. Holmesâ™s classic treatise, The Common Law, has
never been adequately understood as a reconceptualization of common
law opposing the legal positivism of John Austin and Thomas Hobbes.
Legal positivism became inď¬‚uential in England and America with John
Austinâ™s Lectures on Jurisprudence (1861) and was reinforced by H. L. A.
Hart in the following century. It has come to dominate theories of law,
both liberal and conservative. Now, with legal positivism at an impasse, a
reconsideration of Holmes may be welcome.
This study is dedicated to the late Professor Paul A. Freund of Har-
vard Law School, who ignited my original interest in Justice Oliver
Wendell Holmes and the insights to be gained through careful mining
of his complex and controversial work. It is also dedicated to the late

ix
Preface
x

Elliot L. Richardson, whose combination of scholarly intelligence and
public service set a motivating, while equally impossible, example.
I would like to recognize an early and broad-ranging inď¬‚uence of
members of the Harvard University faculty, especially Bernard Bailyn,
my senior tutor Gordon S. Wood, Talcott Parsons, Erwin Griswold, Clark
Byse, Mark deWolfe Howe, and Harold Berman. My interest in Holmes
is partly traceable to an early fascination with the question of whether
law and morals are separate, which was treated in a compilation entitled
âIntroduction to Lawâ distributed to students at Harvard Law School in
the 1960s. Prompted by the insights of Professor Howe, I sensed then
that Holmesâ™s position in the famous 1897 essay âThe Path of the Lawâ
was subtle and unlike that of either Lon L. Fuller or H. L. A. Hart,1 but I
could ď¬nd little elucidation in The Common Law.
Between law school and practice I studied social theory under Talcott
Parsons, and I read much of Emile Durkheimâ™s work. Rereading The Com-
mon Law, I was struck by the comparison between Durkheimâ™s evolution
from mechanical to organic social solidarity and Holmesâ™s evolution from
moral toward external standards. Having had the opportunity to observe
something close to Holmesâ™s notion of speciď¬cation2 in my exposure to
legal practice, I was prompted to look for the origins of his thought in
the early writings.
This led to research at George Washington University, where I went
through the masters and doctoral programs in jurisprudence at the
National Law Center, concentrating on Holmes. A comment by Grant
Gilmore on a work submitted for publication encouraged me to improve
my understanding of pragmatic philosophy and Holmesâ™s relation to it. I
eventually published The Formative Essays of Justice Holmes: The Making of an
American Legal Philosophy in 1984 treating this connection, but I was not
alone in being unsatisď¬ed that it adequately addressed the more difď¬cult
questions.
I later read Gerald J. Postemaâ™s Bentham and the Common Law Tradi-
tion, published in 1986, and I saw how strongly Holmesâ™s theory opposed
legal positivism while ď¬tting the common law tradition; it struck me

then that Holmes had updated common law theory with a concept of
community inquiry parallel to that of the classical American pragmatists,
with whom he associated in mid-nineteenth-century Cambridge. I tested
various aspects of this hypothesis in several papers,3 culminating in one
delivered at the 2001 meeting of the American Philosophical Association,
Eastern Division, entitled âThe Construction of Positivism and the Myth
of Legal Indeterminacy.â My commentator, Brian Bix, gave me helpful
guidance.
Since 1984, Holmes has received much attention. There have been
four biographies, four symposia, two new collections of his writing,
two volumes of essays and one evaluating his contemporary inď¬‚uence,
and numerous articles and monographs.4 The evaluation is Albert W.
Alschulerâ™s Law without Values: The Life, Work, and Legacy of Justice Holmes.
My own study might be considered as an alternative evaluation from the
perspective of contemporary theory. I take a more sympathetic view of
Holmesâ™s contribution. As Professor Matthias Reimann, who wrote more
favorably of Holmes before Alschulerâ™s book, notes in his review of it,

âits main importance lies in a simple but valuable reminder: if Amer-
ican legal culture continues to revere a Nietzschean nihilist, a power-
addicted war enthusiast, and an emotional cripple without sympathy
for the underdog, it is ď¬‚irting with moral bankruptcy.â5 While aware
of the basis for such criticism, I will try to present a balanced picture,
grounded in an admittedly condensed consideration of Holmesâ™s huge
output.
The arrangement of the book is as follows. In the ď¬rst two chapters
I describe the general contours of Holmesâ™s judicial restraint and intel-
lectual background. In the third I compare his conception of law and its
origins to the reigning theory, legal positivism. In the fourth I address
its relation to the tradition of common law. In chapters 5 and 6, I trace
the original emergence of Holmesâ™s conception in the years of scholar-
ship following the Civil War, to document my controversial dissociation
of it from the analytical positivism within which Holmes is commonly
included. Chapter 7 elaborates on Holmesâ™s famous skepticism and his
view of the relation of law and morals. In chapter 8, I address the contin-
uing misunderstanding of Holmesâ™s approach to principles and âpolicy.â
In chapter 9, I present a common lawâ“based elucidation of his consti-
tutional restraint, and in chapter 10, I evaluate his thought from the
perspective of contemporary legal and political theory.
I am grateful to various journal editors and other commentators, on a
number of papers, including Andrew Altman, Patricia Beard, Brian Bix,
Philip Bobbitt, R. Paul Churchill, Larry Goffney, Peter Hare, Catherine
Kemp, David Lyons, Edward H. Madden, Mark Medish, Kevin Mellyn,
James Oldham, Lucius Outlaw, Robert Park, Ferdinand Schoettle,
Thomas L. Short, Beth Singer, Mark Tushnet, and Kenneth Winston,
for their helpful comments and criticism; to William A. Truslow and Dale
Brunsvold for their timely help; and to many members of the Society
for the Advancement of American Philosophy for their enlightenment
and encouragement. While I hope the cautious faith of these people in
my purposes was not misplaced, I admit to a dimness of vision of things
poorly understood, and a natural blindness to my errors, with conď¬dence
that many more are yet to be uncovered, for which all of the above should
remain blameless.
Special thanks are owed to Erika S. Chadbourn and David Warring-
ton and the staff of the Special Collections department of the Harvard

University Law School Library; to the George Washington University and
R. Paul Churchill, then Chair of the Department of Philosophy; and to
the staffs of the Burns and Gelman Libraries at the George Washington
University, Professor Charles Karelis for his intensive commentaries on
my manuscript, and most of all to my wife Molly Shulman Kellogg, for
the immeasurable support that made this project possible.
1

A Time for Law

It cannot be helped, it is as it should be, that the law is behind the times.
As law embodies beliefs that have translated themselves into action, while
there still is doubt, while opposite convictions still keep a battle front against
each other, the time for law has not come; the notion destined to prevail is
not yet entitled to the ď¬eld. It is a misfortune if a judge reads his conscious
or unconscious sympathy with one side or the other prematurely into the
law, and forgets that what seem to him to be ď¬rst principles are believed by
half his fellow men to be wrong.
Justice Oliver Wendell Holmes, 19131

I begin this exploration with a comment by Justice Holmes at seventy-one,
speaking to the Bar Association of the City of New York. He is discussing
the role of timing in judicial decisions, timing indeed in constitutional
law. Holmes is alone as a legal theorist in focusing so heavily on it â“
on the notion of readiness or unreadiness, of a social context within
which legal and constitutional rulings are made. But consider: what of
court intervention in public school segregration, in prosecutorial fairness
and police coercion of confessions, disparate state laws against abortion,
afď¬rmative action in employment discrimination, the constitutionality of
laws barring same-sex marriage, the juvenile death penalty? Has not the
context and timing of judicial rulings in these matters, for good or ill,
been a large measure of their apparent justiď¬cation â“ or lack thereof?

1 Holmes, âLaw and the Court,â speech at a dinner of the Harvard Law School Association
of New York on February 15, 1913, in Mark deWolfe Howe, ed., The Occasional Speeches of
Justice Oliver Wendell Holmes (Cambridge, Mass.: Belknap Press, 1962), 168.

1
Holmes, Legal Theory, and Judicial Restraint
2

Separation of the races could hardly seem unconstitutional to a mostly
white America in 1896, when it was upheld in Plessy v. Ferguson.2 Integrat-
ing the public schools would have been unthinkable then, but in 1954?
After passage of the Civil Rights Act of 1964, judicial orders decreeing
afď¬rmative action in employment were common, after ď¬ndings of race dis-
crimination. Leading universities soon took afď¬rmative steps to increase
the enrollment of minority students. Such programs came under attack
for reverse discrimination. In 2002, after wrestling with this question (and
with itself) for two generations, the Supreme Court upheld a carefully tai-
lored University of Michigan afď¬rmative action plan in Grutter v. Bollinger,3
but set a time limit for constitutionality of twenty-ď¬ve years, after which,
presumably, afď¬rmative action is due to become unconstitutional.
What is involved here? As the constitutional scholar Paul A. Freund
repeatedly asked, should the Court serve as the âconscience of the
countryâ?4 The very idea of a moving national conscience is murky and
uncertain. In his 1969 Oliver Wendell Holmes Lectures, Alexander Bickel
thoroughly deď¬‚ated the notion that the court could associate its rulings
with an inexorable âprogress.â5 Conservatives irk any liberal crowd with
their caricatures of a âliving constitution.â As history reveals, the Court
can get carried too far. In abortion, there was no uniform drift of national
consensus to support a wholesale removal of traditional state jurisdiction
in Roe v. Wade.6 The Courtâ™s actions under the Constitution are ď¬nal, save
a curative amendment, and they short-circuit more natural movements
of national conscience, they close off further civil debate, leaving room
only for vitriol. When the Massachusetts Supreme Court found a consti-
tutional right to same-sex marriage, it affected the politics of the 2004
national elections.
The recent case of Roper v. Simmons illustrates the problem. There the
Court held by a slim 5â“4 majority that capital punishment was unconsti-
tutionally âcruel and unusualâ when applied to juveniles (having upheld
it only sixteen years before). The Roper decision was guided in part by

2 Plessy v. Ferguson, 163 U.S. 537 (1896).
3 Grutter v. Bollinger, 539 U.S. 306, 342 (2003): âIt has been 25 years since Justice Powell ď¬rst
approved the use of race to further the interest in student body diversity in the context
of public higher education. Since that time, the number of minority applicants with high
grades and test scores has indeed increased. We expect that 25 years from now, the use
of racial preferences will no longer be necessary to further the interest approved today.â
4 E.g., Paul A. Freund, On Law and Justice (Cambridge, Mass.: Belknap Press, 1968), 35.
5 Alexander Bickel, The Supreme Court and the Idea of Progress (New York, Evanston, and
London: Harper & Row, 1970).
6 Roe v. Wade, 410 U.S. 113 (1973).
A Time for Law 3

the fact that a growing number of states that authorize capital punish-
ment (although not yet a majority) now outlaw it for juveniles. It was
guided also by the observation that juvenile executions are banned in
an overwhelming majority of foreign countries. This reasoning inď¬‚amed
the conservative dissenters. Wrote Justice Antonin Scalia, âThe court thus
proclaims itself the sole arbiter of our nationâ™s moral standards â“ and in
the course of discharging that awesome responsibility purports to take
guidance from the views of foreign courts and legislatures.â7
There are searching questions raised by Holmesâ™s observation. Is the
division on the current Court to be explained by the line he draws in
warning that the Court should stay âbehind the timesâ? What is the role
of popular consensus in legal interpretation? A student curious about
such questions would seek with difď¬culty any satisfactory explanation in
the university library under âtheories of law.â8 Perhaps more elucida-
tion might be found under the catalogue of âpolitics,â not reassuring
to anyone who imagines that unchanging âprinciplesâ govern the Bill of
Rights. Still, as Holmes said in 1913, battles before the Court generally
rage among and between opposing principles (is there any such thing as a
âneutralâ principle?). The cases that work their way up through the courts
are the most difď¬cult, not the most obvious. Stubborn controversies can
prove relentless in ď¬nding a way, through experienced counsel, to entail
the jurisdiction of the U.S. Constitution.9
How then did Holmes, at seventy-one, come to explain the plight of his
court, besieged by criticism for having overturned much (though by no

7 Roper v. Simmons, No. 03â“633 (U.S. Supreme Court, March 1, 2005), 125 S. Ct. 1183,
1222. â[N]o national consensus exists here.â 125 S. Ct. 1183, 1222 n. 8 (Scalia, joined by
Thomas, dissenting).
8 This is not to suggest that theories of law and constitutionalism in which popular consent
plays an important part are by any means novel. The English scholar Thomas Smith
(1514?â“77) saw a strength of English legal practice as resting on the participating co-
determination of the people. Carl J. Friedrich, The Philosophy of Law in Historical Perspective
(Chicago: University of Chicago Press, 1967), 67. Richard Hooker (1553â“1600) wrote that
âlaws they are not therefore which public probation hath not made soâ and âlaws therefore
human of what kind so ever are available by consent.â From the Laws of Ecclesiastical
Polity (New York: Legal Classics Library, 1998), I, x, 8; Friedrich, Philosophy of Law, at 75.
Bruce Ackerman notes the role of consensus in We the People (Cambridge Mass.: Belknap
Press, 1991). It is rather the place of prevailing standards in immediate decisions that
distinguishes Holmesâ™s view.